Choice v. The State Of Ga.

• Decision Date: 31 August 1860
• Parties: CHOICE vs. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

31 Ga. 424

CHOICE vs. THE STATE OF GEORGIA.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

Indictment for murder, in Fulton Superior Court. Tried before Judge Bull, at the October Term, 1859.

At the April Term, 1859, of the Superior Court of Fulton county, a bill of indictment was found and filed, charging William A. Choice with the murder of Calvin Webb.

On the trial of said indictment, at the October Term, 1859, the following testimony was introduced and submitted to the jury, to wit:

Evidence on part of the State.

John Cason, sworn, says: The deceased was killed on the 31st of December last; witness and Mr. Webb were walking together; deceased said, don't shoot; witness turned and saw prisoner in the act of shooting, and did shoot very quickly; did not appear like he was going to shoot immediately again, and did not; deceased turned to witness and said, I am a dead man; thinks it was on 31st December last; it was in the county of Fulton; the shooting took place near the Trout House, in the city of Atlanta. After witness and deceased passed, prisoner came on after them and stood on the ground witness and deceased had passed over; witness and deceased were about forty feet from the corner of the public square, next the Trout House, where the shooting took place; it was a rainy day. When witness first saw prisoner, he was standing near the corner of the public square, next the Trout House. The reason why witness turned around as he and the deceased were walking on from prisoner, was, that the deceased said, "don't shoot;" two shots fired. There was nothing said by the parties only what I have stated. Deceased, when shot, turned and walked back toward Davis'store, and went only about five or six steps. Witness went to the deceased when he fell; made no examination as to where he was hit; called to others to come, that he was a dead man; does not think deceased breathed after he fell; did not see him move hand or foot. Witness saw the pistol discharged; does not know what kind of a pistol it was; had one barrel, but shot twice. The wound was in the right part of the breast, near the right shoulder; thinks it was in the right shoulder, but not positive; does not think deceased lived more than one minute after the firing of the pistol. At the time of the shooting, deceased was walking nearest to the fence around the park, or public square. This was in December, 1858.

Cross-examination: Did not see Mr. Choice at all until after deceased spoke; had passed the corner, but did not see prisoner when they passed; was not walking very fast. Witness and deceased were crossing from the Trout House when witness first saw prisoner; he was on the plank walk; does not know anything Mr. Choice said before Mr. Webb said, don't shoot; thinks Mr. Choice had a hat on—not positive; did not see Mr. Choice until he got to the corner; does not know how he got there; did not hear Mr. Choice say anything. Deceased was carrying an umbrella over witness; they were walking elbow to elbow, but not locked arms. Mr. Choice stood pretty firm; did not see him reeling; looked at prisoner only one or two minutes; saw him fire the pistol. Choice was a stranger to witness. It took place at about as public a place as any in the city of Atlanta; public open place all around; about 20 or 30 steps from where prisoner was standing to the Trout House; about the same distance to the Atlanta Hotel; did not know to whom deceased spoke, when he said, don't shoot: deceased had to look back to see prisoner; saw no other persons in the street at the time, only Choice and deceased. Witness and deceased were passing on toward the Shed; prisoner had no umbrella over him; heard no sound from him; did not even hear his voice.

Re-examined by the State: When witness turned at the time of shooting, he turned to the right; at this time prisoner had the pistol, aimed, and fired very quick.

Dr. J. F. Alexander, sworn, says: Saw deceased after he was killed; examined the wound upon him; there was only one wound—that of a ball fired from a gun, or pistol, orsomething; it took effect in the right breast, just about the shoulder; entered the cavity of the chest; thinks the severing of the large arteries by the entering of the ball caused deceased\'s death. The examination was made on the same day of the killing; this was in December, 1858; the wound was mortal; thinks from the wound, death would take place in a few seconds; there was no other wound upon deceased. This occurred in Fulton county.

Cross-examined: First saw deceased on that day about 10 o'clock; it was raining. There is a disease called monomania or dipsomania, caused by using intoxicating drinks; looks on mania as always the same; but, the exciting cause be what it may, would draw a difference in an act caused by mania, produced by intoxicating drinks, and by drunkenness. A blow upon the head, so as to fracture the brain or produce a severe contusion, may produce "elision" in the brain, so as to act as a predisposing cause to insanity: an attack of insanity always presupposes a recurrence again; every attack increases the severity of them. Insanity, during a relapse, is as when first brought on, and reason is as much destroyed. When this madness and raving is produced by the use of liquor, the liquor is merely an exciting cause. An attack produced by the exciting cause produces unconsciousness, the same as the attack produced first by the blow or contusion. This disease of the brain is liable to relapse by causes over which the patient has no control. An act done in a relapse state is the act and deed of an insane man, and not of a drunken man. Frequently an increased severity of the attack. Elision is caused by concussion, or any violent blow.

An act committed during relapse, if insanity, through liquor, was the exciting cause, it was the act of an insane man, and not of a drunken man. A man in this state of insanity, though produced by liquor, is unconscious of right and wrong. Stupor is apt to follow an act of excitement, and when aroused from that state, is unconscious of what has taken place. When he has fallen into stupor from one of these attacks, and aroused, is apt to be unconscious of what occurred; when he has been aroused from this stupor, and is unconscious of what has occurred, it is evident that he has had an attack of insanity; when it is known that he is subject to such attacks, any moral depressing cause will be likely tobring on a relapse of insanity, such as disappointment in business, etc.

Re-examined by the State: Oinomania is different from Ma-nia-a-potu: the latter is caused by strong drink alone. When thus produced, he is unconscious of what he does; and if a man is conscious of what he says, it is evident that he is not laboring under oinomania or insanity. A man laboring under monomania can not connect events, etc. It is only when the sense of danger is the cause of insanity, that the patient has the dread of danger. When a patient gives evidence of a sense of danger, it is an evidence that he is not in a state of mania. A person insane is unconscious of danger; and showing a sense of danger, is evidence that he is not insane. The principal symptoms are a total loss of mind. There is no species of insanity in which a man can talk, and think, and act coherently, except in monomania. If a man talks, acts and thinks coherently, that is the highest evidence that he is not insane. A man afflicted with monomania can not recollect and narrate things and acts coherently. If a man can do this, it would be one of the highest evidences that he was not insane; might remember facts, but could not recollect and narrate them in the order in which they occurred; could not reason upon them, and could not be reasoned with, so that his conduct could be controlled by argument of others. There are always physical appearances of insanity: the eye is the greatest index. A man who is accustomed to it, can tell when a man is afflicted with insanity. Where you find any one under the influence of drink, is raging and raving, he is predisposed to insanity, and might be brought on; liquor is the proximate cause, and the constitutional or accidental predisposition is the remote cause. Extreme drunkenness causes deep stupor. If, on awakening, the person shows a recollection of what took place before the stupor, this would be an evidence that it was not insanity; when recovering from stupor, a person is as oblivious as from insanity. However drunk a man may be, he will understand something you may say to him; but if insane, he will not. One of the symptoms of dipsomania is thirst for drink—an irresistible thirst for drink. If the causes which rendered the person insane were those of danger, it would be almost certain for the patient to be sensible of danger in cases of relapse. Much that witness has said in reply to solicitor-general, has been inreference to mania generally. When witness, in reply to solicitor-general, said that an insane person could not reason, he did not mean to say that he could not have ideas. Insane persons generally exhibit a good deal of cunning and shrewdness. Insanity, in its types and symptoms, differ as subjects differ; can not lay down general symptoms. The fact that a person exhibits, or seems to exhibit, shrewdness, does not rebut the idea that he is insane, and irresponsible. Insane persons commonly sing songs, speak speeches, and then, when told of it, be perfectly unconscious. The songs and speeches, they have learned when sane. Insane persons frequently exhibit a physical power when they have no moral power; insane persons know that fire will burn a house, a pistol will shoot, but not sensible of the criminality and moral wrong, and will show a disposition to use them. A person acting under the influence of mania, as described by the witness, his acts will apparently be the result of consciousness, and a distinction between right and wrong, when the fact of being so...